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Challenges Faced By The Religious Minorities For Right To Freedom Of Religion And Expression (By- Oaishika Mukherjee)
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Challenges Faced By The Religious
Minorities For Right To Freedom Of Religion And Expression
Authored By- Oaishika Mukherjee
BA+LLB (H), Semester- 7th
Abstract
International Human Rights law on
minorities puts forth a complicated system of provisions which influence
religious groups. The rights of religious minorities follow from basic human
right treaties and are an essential factor for democracy. The right to freedom
of thought conscience and religion is closely associated with other human
rights like freedom of expression, association and assemble enshrined under
Article 19 of the Constitution of India. Hence respect for human rights
indicate every person belonging to religious minorities have freedom to
practice their religion freely and are protected against hate crime, abuse and
persecution. Since the inclusion of the Declaration of Human Rights, 1948, the
admission of human rights protection for every person has been framed, so it is
hoped that there is no violation of human rights and crimes in every country in
the world. All person has the right to live peacefully and carry out every
activity of the religious beliefs without any oppression. Freedom of religion
or belief is one of the fundamental right embodied under Constitution of India.
This paper will also deal later what had happened with the Rohingya tribes of
Myanmar. This paper will also deal how the international legal view of human
rights abuses.
Keywords-
Religion, Minorities, Human Rights,
Violation, International law.
Introduction
Nowadays human right violations which
are based on freedom of religion or belief are very common around the globe.
Religious minorities are frequently subjected to cordial animosity and
limitations imposed by the government basically affect persons belonging to
religious minorities due to their precarious legal and social situation. The
most commonly Amidst the most frequent prevalent contravention determine
prohibition of religious activities, constraints on worship, practice and
festivity observance, confines on and refusal of public registration, arbitrary
detention and prosecution of ethical objectors, demolition of religious
property, denial to admit places of worship and refusal of access to education.
According to census in 1992, the
United Nations Minorities Declaration in its article 1 refers to minorities as
based on national or ethnic, cultural, religious and linguistic identity, and
furnish that States should protect their subsistence. There is no
internationally coincide definition as to which groups comprise minorities. It
is often stressed that the presence of a minority is a question of fact and
that any definition must involve both objective factors (such as the existence
of a shared ethnicity, language or religion) and subjective factors as well as
that person must distinguish themselves as members of a minority.
Likewise to minorities, there is no
universally established international definition of indigenous peoples.
Suggestion in this regard can be acquired, for example, from the work of the
Working Group on Indigenous Populations, the provisions of Convention No. 169
of the International Labour Organization (ILO) and the contents of the United
Nations Declaration on the Rights of Indigenous Peoples.[1]
Various sources cite the following characteristics, either alone or in
combination: indigenous peoples are declining from the peoples who lived the
land or territory prior to colonization or the creation of State borders; they
possess distinct social, economic and political systems, languages, cultures
and beliefs, and are bound to conserve and develop this distinct identity; they
exhibit strong attachment to their ancestral lands and the natural resources
contained therein; and/or they belong to the non-dominant groups of a society
and identify themselves as indigenous peoples.[2]
In contemporary international law,
common thing pertaining to religious minorities was raised in relation with the
territorial changes following World War I. After the peace agreement led to the
development of a legal definition embedded in international rules, within the
work of the League of Nations. It was the requirement to assure peace at the
global level that invoked a redefinition of the concept of nationality where
pre-eminence was to be given to ethnic, linguistic and religious disparity
between majorities and minorities.[3]
Religion ascertain its place among the standards to create the existence of a
minority, while general identity and solidarity become the ‘key words’ to
describe it.[4] After
World War II, a number of definition of the term ‘minority’ were given within
the work of the United Nations all of them expressing the difficulty to
ascertain which social groups were accredited to be called as minorities, if
indigenous people or migrant workers were to be comprehended, which is
obviously a subjective and objective measures were to be confronted and if a
slightest size had to be solicited.[5]
According to Articles 29, 30, 350A, and 350B
of the Indian Constitution the word minority has been used and its plural
forms, but it is not defined anywhere. Currently, there has been various debate
in India on the question on the button who constitutes a minority. The Supreme
Court of India in TMA Pai Foundation & Ors v. State of Karnataka & Ors
(2002) has held that for the purpose of Article 30 of the Indian Constitution,
a minority whether linguistic or religious is determinable with reference to a
state and not by taking into consideration the population of the country as a
whole. Due to state-based recognition of religious minorities, some religious
minorities have struggled to get national-level recognition by India’s central
government. In case of Bal Patil & Anr v. Union of India & Ors[6] it
was held that the Jains filed a petition in the Indian Supreme Court to seek a
judgment by the central government for a parallel recognition at the national
level. The Jains’ petition was endorsed by the National Commission for
Minorities in India, but the Supreme Court without making a proper judgement
passed the matter to the central government of India.
Any act for the protection of
minorities should concentrate initially on the protection of the physical
presence of persons belonging to minorities, as well as protecting them from
genocide and crimes against humanity.
Amidst collision, the physical unity of
persons belonging to minority groups is in line of an imminence risk and
attention should be paid to assuring that minorities, including those
dislocated internally within their own country or externally as refugees, have
convulsion to humanitarian aid and relief such as food, shelter and health
care. Lack of respect for, lack of protection and lack of fulfilment of the
rights of minorities may be at least a contributing factor if not the initial
reason of dislocation and may—in the worst cases—even lead to the demolition of
such religious communities. The dislocation of minorities can thus satisfy as a
handler of the degree to which their rights are respected, protected and
fulfilled in the country from which they are dislocated. Although it can be
challenging to distinguish all minority community as such in a status quo of
dislocation, protection mechanisms, including humanitarian assistance schemes,
need to be purported in a way which approves these groups to reserve their
identity to the greatest extent possible. It is prominent to allow that the
protection of the presence of minorities also claims regard for and protection
of their religious and cultural heritage, which are sina qua non to their group
identity. As former United Nations Secretary General Kofi Annan remarked at the
Stockholm International Forum in January 2004: “We must protect especially the
rights of minorities, since they are genocide’s most frequent targets.[7]
Persecution or minorities can be
broadly classified as violence or discrimination against minority groups,
involving acts aiming to deprive political rights and force minorities to
associate, leave, or live as second-class citizens. Persecution of minority
groups is popular in many situations whether challenged by disasters or not.
Implying to disaster situations, Slim and Bonwick (2005) commented, ‘that it is
important to understand who is the most vulnerable to threats and that this may
involve important differentiation of the threats by age, gender, ethnic group,
social status, religion or other factors’.
Moreover, in many parts of the world,
they may be victims of several human rights violations, violence, conflict,
ethnic or religious persecution, and in extreme cases, genocide. Religious
minorities may affront a number of safeguard dangers that may involve more need
than others in similar issues. These are-
· Minorities and indigenous peoples
are among the most marginalized communities in many societies.
They are usually prevented from
contributing in social and economic affairs, may not have authority to
political power, and are subsequently excluded from revealing their identities.
These hurdles are aggravated during migration, which rises the risks they face.
· Members of minority and indigenous
groups can be at danger of harm from the surrounding population or from their
own family or community.
· If the
violence that caused dislocation targeted minority or indigenous communities,
they may be at danger if it disclose over into their countries of asylum.
Children and women are especially prone to attack; community leaders, and men
who are regarded to be possible belligerent, are also at danger.
· Since
minorities and indigenous peoples always assure persistent poverty and are
assumed by other format of marginalization, they may be at danger of becoming
victims of trafficking, including sexual exploitation. This danger increases in
a case of dislocation and is especially acute for minority and indigenous
children, young adults and women.[8]
Whilst minority groups of everyone
may face persecution, societal tension between religious communities in a
number of various countries has meant that religious minorities have been the
target of violence and struggled to access assistance. The United Nations (UN)
Special Rapporteur on ‘Freedom of Religion and Belief’ (FoRB) has reported that
religious persecution is on the rise.[9]
Under the provisions of human rights
mechanism, States have a responsibility to guard the rights of all persons
subject to or under their direction. Protest express to this principle hit it
off, among other things, to political rights. The Commentary on the United
Nations Minorities Declaration by the Working Group on Minorities is important
as it decipher the interpretation of the substantive provisions of the
document. Under international law, few rights which are granted to minority
have been made available to recently succeeded migrants who possess same
ethnic, religious or linguistic identity. Their treatment is to be confirmed in
the customary international law principle of non-discrimination, which is basic
in international law and it is expressed in all human rights instruments and
documents. The right not to be discriminate against is protected under various
mechanism of direct rightness to minorities.
A basic problem relating to minorities and
citizenship is that again and again members of particular groups are denied or
deprived of their citizenship because of their national or ethnic, religious
and linguistic characteristics. This custom is against to international law,
basically in regard to article 9 of the 1961 Convention on the Reduction of
Statelessness, which provides that “a Contracting State may not deprive any
person or group of persons of their nationality on racial, ethnic, religious or
political grounds.”[10]
It is therefore necessary to note
that discrimination against a person on one of the above grounds resulting in
the arbitrary absence of nationality may confer to meeting some of the needs in
the determination of refugee status. Discrimination against minorities has
widely resulted to their exclusion from citizenship. Such exclusion is
generally accomplished in newly independent States that outline citizenship in
a way which excludes persons belonging to particular minority groups who are considered
as “outsiders” regardless of long-standing associates to the territory of the
new State. For instance discrimination against minorities may be a reason of
statelessness, the very cause that members of a particular group are stateless
can detoriate their practice of a broad range of human rights. While in general
most human rights are given to everyone under the jurisdiction of the State, in
practice non-citizens, including stateless persons, face obstacles in
exercising these rights. These hurdles may be larger yet if the refugee person
also comes from a minority group.
Article 25(1) of the Indian
Constitution guarantees that “subject to public order, morality and health, all
persons are equally entitled to freedom of conscience and the right to freely
to profess, practice and propagate religion.”[11]
However, its sub-clause 2 (B) and its corresponding Explanation II is
considered very debatable. While Explanation I states that the wearing and
carrying of kirpans shall be considered to be included in the profession of the
Sikh religion. Explanation II in sub-clause 2 (B) states, “Hindus shall be
interpreted as involving a reference to persons practicing the Sikh, Jain or
Buddhist religion, and the source of Hindu religious institutions shall be interpreted
accordingly.”[12] This
constitutional provision is very biased, as it states that even as a
multi-faith state, India seems to be ardent about the social welfare of only
one religion i.e. Hinduism and its religious practices.
Article 17 of the Indian Constitution
officially makes the practice of “untouchability”the imposition of social
disabilities on persons by reason of their birth into “untouchable” castes a
punishable offense. Article 15 removes untouchability and discrimination based
on caste. But, the caste system is an integral part of Hinduism, the majority
religious belief of India. According to Hindu scripture, individuals are born
inherently unequal into a graded, caste-based structure that defines their
status and opportunities in life.[13]
They were categorized on the basis of 4 things namely the Brahmana, the
Kshatriya, the Vaishya’s and the Shudras.
The practice of untouchability
continues to affect the lives of millions of Dalits today. The essence of such
suppression has taken and it continues to take various forms. The time
immemorial customs included restricting Dalits from walking public streets in
the event they cross “upper-caste” Hindus, and requires Dalits to mark
themselves with black bracelets, ties a broom around their waists so as to
clean the path they walk on, or hang an earthen pot around their necks “lest
spit falling on the earth should pollute a Hindu who might unknowingly happen
to tread on it.[14] Caste
discrimination continues and caste categories are legally prominent in order to
execute a form of positive action known as “reservations.” Reservations are a
quota-based system that classifies individuals and communities as “Scheduled
Castes”. The basis for this discrimination is provided by the Presidential
Order of 1950, in which clause 3 states: “Notwithstanding anything contained in
paragraph 2, no person who professes a religion different from the Hindu [the
Sikh, or the Buddhist] religion shall be deemed to be a member of a Scheduled
Caste.”[15]Fifteen
percent of all places in educational institutions, as well as jobs, are
reserved for the Scheduled Castes. It has now been more than a decade that the
Supreme Court of India has unnecessarily delayed its judgment on the case. A
Zee News editorial raises a very important question: when the government has
amended the constitution to give reservations to Dalit Sikhs (1956) and
Buddhists (1990), why is it delaying the matter when it comes to Dalit Muslim
and Christians?[16]
The scheme of reservations has
helped very few Dalits in the country. Increasing illiteracy and dropout rates
among Dalits stands that very few are able to get themselves the constitutional
rights in government sector employment and education. Various number of key
sections also continue to remain outside the ambit of the reservation policy,
and caste-based discrimination continues to be accomplished in the sectors
where reservations are secured, resulting to under application. Separation
between Dalits and non-Dalits is commonly practiced in housing, schools, and access
to public and private sector services. Article 46 of the Indian Constitution
states: “The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and forms of exploitation.[17]
Furthermore, Article 15 (4) encourages the state to make any special provisions
for the advancement of any socially and educationally backward classes of citizens,
or for Scheduled Castes and Scheduled Tribes.[18]
The majority of Dalit students are studying in government schools with
inadequate classrooms, teachers, and learning resources. Government schools
basically teach them in regional languages, as against to private schools where
students are usually from upper caste and so they teach in English. The
incompetency to speak English moreover disables Dalits in the private sector
and the global market.[19]
The right not to be discriminated against is the key in safeguarding the rights
of persons belonging to minorities in all regions of the world. Minorities all
over the globe experience direct and indirect, de jure and de facto
discrimination in their daily lives. Equality and equality before the law are
one of the basic principles of international human rights law[20].
The principle of nondiscrimination forbids any difference, exclusion,
restriction or preference which has the goal or effect of deteriorating or
deterring the recognition, enjoyment or exercise by all persons, on an equal
pace, of all rights and freedoms.[21]There
is no need to express discriminatory intent. The phrase “purpose or effect”
refers to laws and policies which may be literally neutral but are construed in
a way that leads to discrimination. International human rights law prevents
both direct and indirect differentiation practice.
Indirect discrimination is more
deceptive and, hence, harder to recognize and prohibit. It occurs when a
custom, rule or requirement is impartial on its face but has a distinct impact
on particular groups, unless the practice, rule or requirement is an essential
and claims to achieve a constitutional objective. Approaching the changing
influence of a measure on an individual as a member of a group helps to better
identify the main causes of discrimination and inequality. Distinct treatment
may be allowed if its objective is to conquer past discrimination or address
present inequalities. As a matter of fact, international human rights law
provides for the adoption of special measures in favour of individual persons
or groups for the objective of eradicating discrimination and attaining full
equality, not only in law but also in practice. Various legal measures envisage
this. The International Convention on the Elimination of All Forms of Racial
Discrimination permits the implementation of special measures “for the sole
purpose of securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to ensure such
groups or individual’s equal enjoyment or exercise of human rights and
fundamental freedoms”.[22]
The involvement of individuals belonging to minorities in public affairs and in
all perspective of the political, economic, social and cultural life of the country
where they live is in fact necessary to preserve their identity and combating
social exclusion. Measures are needed to assure that the disparity of society
with regard to minority groups is commented in public institutions, such as
national parliaments, the civil service sector, including the police and the
judiciary, and that individuals belonging to minorities are properly
represented, discussed and have a say in decisions which impacts them on the
territories and areas in which they live. Participation must be significant and
not just simply symbolic, and recognize, for example, that minorities are
generally inadequately represented and that their issues may not be aptly
addressed. The participation of women belonging to minorities is of main concern.
Pre-existing armed conflicts between the Tatmadaw and EAOs in different states
and regions of Myanmar have continued or re-emerged since 1 February 2021.
While Rakhine State saw major violence throughout most of 2020, a delicate
ceasefire from late-2020 between the Tatmadaw and the Arakan Army (AA) has
abide by to date. In other areas that have been less changeable in present
years, notably Kachin and Kayin states, hostilities have resurged.
Frequent, credible reports shows that various
parties to armed conflict have not respected their duties to guard civilians in
view with international human rights and humanitarian law. Generally, the
Tatmadaw has prevailed to plan attacks apparently directly targeting civilians
and civilian objects, or which were carried out indiscriminately, in flagrant
disregard of civilian populations.[23]
Landmines also abide to kill and injure civilians and affect livelihoods and
humanitarian access.
As stated previously, wherever a
non-international armed conflict continues, international humanitarian law is
applicable in addition to international human rights law. As such, all parties
to the dissention are needed to take constant care to save civilians and
civilian objects, as well as by taking all necessary protection to avoid and in
any circumstance reduce loss of civilian life and deteriorate to civilian
objects. Some violations of these duties, as well as the intentional targeting
of civilians, using human shields, forced dislocation, and attacking civilian
objects except needed for the protection of the civilians involved or justified
by compulsory military requirement, may amount to war crimes.
Conclusions
As stated at the outset, India’s
constitution encompasses provisions that emphasize complete legal equality of
its citizens regardless of their religion or creed, and prohibits any kind of
religion-based discrimination. It also give protection although only to bound
religious minority communities. However, the report demonstrates that there are
constitutional provisions and state and national laws in India that do not
comply with international standards of freedom of religion or belief, including
Article 18 of the UN Declaration of Human Rights and Article 18 of the
International Covenant on Civil and Political Rights. Under Congress Party and
BJP-led governments, religious minority communities and Dalits, both have
combatted discrimination and aggravation due to a connection of exorbitantly
broad or severely defined laws, an inefficacious criminal justice system, and a
lack of jurisprudential consistency.
Article Information
Challenges Faced By The Religious Minorities For Right To Freedom Of Religion And Expression (By- Oaishika Mukherjee)
Authors: Oaishika Mukherjee
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/13
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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